Politicians as Guardians of the Constitution: When Vice Turns into Virtue?

Abstract Law and politics are often said to mix in the context of constitutional review of legislation. However, there are different ways to understand this claim. Do they get entangled as a matter of fact in constitutional interpretation, or is it possible, in principle, to keep them separate? If it is possible, should they be kept separate? Defenders of legal constitutionalism, who want to entrust constitutional review to independent courts, think that law has a logic of its own that is separate from politics, while political constitutionalists think that constitutional issues are about political morality and should be decided in a political debate. I discuss the entanglement of law and politics in constitutional review through the lens of virtue theory and by using the Finnish Constitutional Law Committee as an example. It illustrates vividly the difficulties of keeping law and politics apart, since the members of the committee are politicians, yet they are supposed to assume the role of constitutional judges as members of the committee. This means that it is hard to say which virtues they should cultivate: those of a politician or a judge? What if the virtues pull in different directions, so that a judge’s vice is a politician’s virtue? I propose that rather than viewing constitutional review as either strictly legal or fully political enterprise, it could be seen as a practice of its own in which constitutional virtues are required.